Volume 31 — Nevada Reports

Original proceeding. Application by W. B. Pittman, on behalf of T. B. Rickey, for a writ of habeas corpus. Statement op Facts This is an original proceeding in habeas corpus. The writ in this case was heretofore issued upon a duly verified petition in behalf of T. B. Rickey, alleging that he was unlawfully confined and restrained of his liberty by the sheriff of Ormsby County.

<p>Original proceeding. Application by W. B. Pittman, on behalf of T. B. Rickey, for a writ of habeas corpus.</p> <p>The facts sufficiently appear in the opinion.</p>

Original proceeding. Mandamus by the State of Nevada, on the relation of the Henderson Banking Company, against J. A. McBride and H. S. Taber, Chairman and Clerk of the Board of School Trustees of Elko School District. The facts sufficiently appear in the opinion. The only issue that is apparent, or which has been called to our attention, is whether the scheme of redemption of the bonds authorized by the trustees and the voters of the district invalidates the issue.

<p>1. Statutes—Local and Special Laws—County Bonds.</p> <p>The act of March 28, 1907, authorizing a particular county to issue bonds to build a court-house and a jail, is not unconstitutional under the Constitution (art. IV, sec. 20), which inhibits local or special laws regulating county business, nor under sections 21 and 25 requiring the county government system to be uniform, and all laws to be general and of uniform operation throughout the state, where general laws can be made applicable.</p>

P. Zangan, Judge. Action by Margaret G. Kapp against Charles F. Kapp. From an order increasing alimony pendente lite, defendant appeals. The facts sufficiently appear in the opinion. I. A careful examination of the text-books and of the authorities will show that the weight of authority supports the contention that an appeal lies from an order granting alimony pendente lite, counsel fees and costs. (Sharon v. Sharon, 67 Cal. 185; LochnancY. Zochnane, 78 Ky. 468; HechtY.

P. Langan, Judge. Action by J. E. Burke and others, doing business as J. E. Burke & Co., against Hamilton Buck. From a judgment for plaintiffs, and from an order denying a nonsuit, defendant appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application by T. B. Rickey for writ of habeas corpus for his discharge from custody. Statement oe Facts This is an original proceeding in habeas corpus. The writ was heretofore issued upon a duly verified petition in behalf of T. B. Rickey, alleging that he was unlawfully confined and restrained of his liberty by the sheriff of Nye County.

<p>1. Habeas Corpus—When Writ Maintainable.</p> <p>The question o£ the legality o£ the method of impaneling a jury in a criminal case should be raised on appeal from the judgment and from an order denying a new trial, and not on habeas corpus.</p>

Original proceeding. Application for certiorari by The State, on the relation of Frank X.. Murphy, against the County of White Pine and others, to review the action of the board of county commissioners of said county in entering into a certain contract. ■ The facts sufficiently appear in the opinion. I. The debt created by this contract is not expressly authorized by law; and the board of county commissioners exceeded its jurisdiction in making thé contract.

Orr, Judge. Action by James Murphy against the Southern Pacific Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion.

<p>1. Appeal and Error—Dismissal of Appeal—Grounds—Showing.</p> <p>Under Supreme Court Rule 3, providing that a motion to dismiss an appeal for failure to file the transcript of the record in time shall be accompanied by the certificate of the clerk below, certifying enumerated facts, it is error to dismiss an appeal merely on the affidavit of counsel, especially where the affidavit did not show the essential facts.</p> <p>2. Appeal and Error—Motion to Dismiss—Service—Necessity.</p> <p>A motion to dismiss an appeal under Supreme Court Rule 3, authorizing the dismissal of an appeal for failure to file the transcript within the time prescribed, need not be served.</p> <p>3. Appeal and Error—Dismissing Appeal—Reinstating Appeal.</p> <p>The unsworn statement of counsel for appellant, made in the absence of counsel for respondent, excusing the delay in filing the transcript on appeal, does not establish a good cause for vacating an order of dismissal within Supreme Court Rule 3, authorizing the court to restore a cause dismissed on good cause shown on notice to the adverse party.</p> <p>i. Appeal and Error—Dismissal of Appeal—Vacation of Order.</p> <p>Where appellant failed to promptly call the attention of the supreme court to its error in dismissing an appeal under Supreme Court Rule 3, and failed to show any good cause for vacating the order of dismissal, the order would be vacated only on appellant within a specified time presenting to the court the record on appeal with a satisfactory showing by affidavit that the same was taken in good faith.</p> <p>Talbot, J., dissenting.</p>

<p>1. Appeal and Error—Record—Review— Scope.</p> <p>Where no appeal is taken from an order denying a new trial, and there is no statement on appeal or bill of exceptions, the judgment roll alone can be considered by the supreme court.</p> <p>2. Appeal and Error—Record—Findings op Lower Court.</p> <p>Findings of the district court cannot be considered on appeal unless embodied in the statement of the case.</p> <p>3. Appeal and Error—Review—Presumptions.</p> <p>All presumptions are in favor of the regularity of the proceedings of the trial court.</p> <p>Talbot, J., dissenting.</p>

P. Pangan, Judge. Action by George Luke against Harry Coffee and others. From a judgment in favor of plaintiff, defendants appeal. The facts sufficiently appear in the opinion.

P. Langan, Judge. Action by Mrs. H. 0. Earns against the State Bank and Trust Company. From an order vacating a default judgment, plaintiff appeals. The facts are sufficiently stated in the opinion.

Orr, Judge. Action by W. E. Turley against W. B. Thomas and G. J. Bower. Prom a decree for plaintiff, defendants appeal.

P. Pangan, Judge. James Thompson and another were convicted of an attempt to commit grand larceny, and they appeal. The facts sufficiently appear in the opinion. I. An attempt to commit a crime must -include some overt act or the intent must be proved beyond a reasonable doubt. This court has .already passed upon what is necessary in such a case.

S. A. Pike, Judge. Action by S. Lund against Washoe County. From a judgment in favor of plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. In Sadler v. Eureka County, 15 Nev. 42, the court said: The powers of the commissioners and the mode of exercising them, being derived from the statute, must necessarily depend upon its true construction.

<p>Arpeal from the District Court of the First Judicial District of the State of Nevada, Esmeralda County; F. P. Langan, Judge.</p> <p>Action by the Interstate Lumber and Mill Company against the Nevada Amusement Company and another. Judgment for defendants, and plaintiff appeals. On motion for reinstatement after dismissal for delay.</p> <p>The facts sufficiently appear in the opinion.</p>

Original proceeding. Application by Thomas H. Cline for a writ of prohibition to restrain Frank P. Langan, District-Judge, and others, from attempting or proceeding further to punish relator for contempt. Statement of Facts The essential facts are undisputed: Respondents,-Scott & Zimmerman, brought an action against relator and one S. H. Harris, and another suit against the petitioner alone, which related to a leasehold interest and rents.

P. O’Brien, Judge. William Niblett appeals from a conviction.' The facts sufficiently appear in the opinion. I. What has Mary Kawich done to throw off the guardianship that the government naturally exercised over her? How has it been shown that she was not a ward of the government?

Original proceeding. Application by Frank Golden for a writ of prohibition against Mark R. Averill, as District Judge, and others. The facts sufficiently appear in the opinion. I. Prohibition does not lie when remedies can be had by appeal on writ of error.. (High on Extraordinary Legal Remedies, 765; People v. Westbrook, 89 N. Y. 152; State v. Corey, 35 Minn. 178; State v. District Judge, 38 La.

P. Langan, Judge. Barney Hughes was convicted of assault with intent to commit robbery, and appeals. The facts sufficiently appear in the opinion. I. The indictment does not state facts sufficient to constitute the crime charged therein, or any other crime punishable at law, because the indictment does not allege that the acts done by the defendant were done with the intent to commit the crime of robbery.

H. A. Pike, Judge. Savatore Luhano and Servanti Davis were convicted of robbery, and from the judgment and an order denying motion for new trial, defendants appeal. The facts sufficiently appear in the opinion.

Orr, Judge. C. E. Sherman was awarded damages against the Southern Pacific Company, and from an order allowing defendant additional time in which to file a motion for new trial, plaintiff appeals. The facts sufficiently appear in the opinion.

P. O’Brien, Judge. Action by the Tonopah Banking Corporation against the McKane Mining Company of Tonopah, Nevada. From an order denying defendant’s motion to vacate an execution sale, defendant appeals. The facts sufficiently appear in the opinion.

P. O’Brien, Judge. Action by the Tonopah Banking Corporation against the Red Rock Consolidated Mining Company. From an order denying defendant's motion to vacate an execution sale, the defendant appeals. The facts sufficiently appear in the opinion.

P. O’Brien, Judge. Action by Z. H. Lowman against the Nye and Ormsby County Bank. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Statement of Facts This is an action brought by the plaintiff, appellant herein, against the defendant, respondent herein, for damages in the sum of $13,500 for breach of contract. From a judgment in favor of defendant and from an order denying plaintiff’s motion for a new trial, plaintiff appeals.

P. Langan, Judge. Certiorari by Mrs. Annie Fitchett and others against W. J. Henley, Justice of the Peace. From judgment dismissing the writ, plaintiffs appeal. The facts sufficiently appear in the opinion.

P. Langan, Judge. Emile Rodriguez was convicted of assault with intent to kill, and he appeals. The facts sufficiently appear in the opinion.

P. Langan, Judge. Action by the Goldfield-Mohawk Mining Company against the Frances-Mohawk Mining and Leasing Company and others, and another action by the same plaintiff against D. Mackenzie & Co. From an order in each case discharging an attachment, plaintiff appeals. The facts sufficiently appear in the opinion.

<p>Appeal from the District Court of the First Judicial District of the State of Nevada, Esmeralda County; F. P. Langan, Judge.</p> <p>Action by the Goldfield-Mohawk Mining Company against D. Mackenzie & Co. From an order discharging an attachment, plaintiff appeals.</p>

<p>1. Grand Jury—Challenge to the Panel.</p> <p>The statutory causes of challenge to the panel of a grand jury specified in the criminal practice act of 1861 (Stats. 1861, p. 454, c. 104), sec. 179, do not apply to the changed method of drawing grand jurors according to Comp. Laws, 3869.</p> <p>2. Grand Jury—Attendance.</p> <p>It is not necessary to have the full venire of twenty-four present according to Comp. Laws, 3869, before a grand jury of seventeen is selected; the provisions in the statute for a larger venire than the grand jury selected being directory.</p> <p>3. Criminal Law—Evidence—Judicial Notice.</p> <p>Courts take judicial notice of periods within the calendar.</p> <p>4. Homicide—Indictment—Time of Death. •</p> <p>An indictment charging that a mortal wound was inflicted on a date about four months before the finding of the indictment, and that deceased died from it in the meantime, sufficiently charges that death occurred within a year and a day after the infliction of the wound.</p> <p>5. Criminal Law—Appeal and Error—Review—Harmless Error.</p> <p>The admission of the hearsay evidence as to what was done with the body of deceased after it was found by the witness is harmless.</p> <p>6. Criminal Law—Evidence—Opinion—Time.</p> <p>Time is provable by the opinion of a witness testifying from his recollection.</p> <p>7. Criminal Law—Trial—Reception of Evidence.</p> <p>The time and place of a remark made by the accused having been fixed as the one occasion on which he came to a camp when the snow fell, the foundation for proof of the remark was sufficient.</p> <p>8. Witnesses—Examination—Leading Questions.</p> <p>It is discretionary to allow leading questions on the direct examination when the witness is unable to understand otherwise.</p> <p>9. Criminal Law—Appeal and Error—Review—Harmless Error.</p> <p>Error in a question to a witness, and a statement of the court in the presence of the jury implying that a confession had been made, is cured as soon as the fact is proved by the testimony of the witness and the accused.</p> <p>10. Criminal Law—Trial—Remarks of Judge—Comments on Witnesses.</p> <p>A remark of the court in ruling on the admissibility of leading questions that they are sometimes necessary to elicit the truth is not objectionable as asserting that the witness is truthful and creditable.</p> <p>11. Criminal Law—Trial—Province of Court and Jury—Determination on Admissibility of Confessions.</p> <p>The question of the voluntariness of a confession is to be decided primarily by the court after hearing all the evidence offered by both sides upon that issue, and, if the confession is ruled to be admissible, it is not improper to submit all the evidence to the jury to be considered in determining the weight to be given to the confession.</p> <p>12. Ceiminal Law—Evidence—Confessions—Pbeliminaey Evidence.</p> <p>The accused is entitled to introduce evidence to rebut the claim of the state that his confession is voluntary before the court determines whether it is to be submitted to the jury.</p> <p>13. Ceiminal Law—Tbial—Reception of Evidence—Peesence of Juey.</p> <p>If it cannot be easily shown that a conversation sought to be proved was voluntary, without leading the jury to surmise that a confession has been made, they ought to be excused until the court can hear the evidence and determine whether the confession ought to be submitted to them.</p> <p>14. Ceiminal Law—Abbaignment and Pleas.</p> <p>The entry of a plea of not guilty in behalf of the accused by the clerk upon the order of the court after defendant’s refusal to plead is equivalent to a plea of not guilty.</p> <p>15. Ceiminal Law—Appeal and Eeeoe—Presumptions.</p> <p>All presumptions are in favor of the regularity of the action of the trial court.</p>

H. A. Pike, Judge. Action by the San Pedro, Los Angeles and Salt Lake Railroad against Lucille Bailey to revoke letters of administration on the estate of Claude Bailey, deceased. From an order refusing to revoke said letters, plaintiff appeals. The facts sufficiently appear in the opinion.

P. Langan, Judge. Henry Weber was convicted of embezzlement, and he appeals. The facts sufficiently appear in the opinion. I. The demurrer to the indictment should have been sustained. To come within the terms of the statute, the defendant must have been either the agent” manager” or clerk” of the alleged corporation. The indictment described him as president” with nothing more.

Orr, Judge. Action by Frank Golden against J. C. Murphy and others. From a judgment for plaintiff, defendants appeal. The facts' sufficiently appear in the opinion. I. The lower court never obtained jurisdiction over the person of the Royal Mining Company. The service of summons upon the Royal Mining Company was a substituted service, made upon the secretary of state, and no personal service was made.

S. A. Pihe, Judge. Action by the Reno Brewing Company against Ira Packard and another. From a judgment for plaintiff, defendant George F. Wells appeals. The facts sufficiently appear in the opinion. I. It is universally held that the plaintiff in ejectment must recover upon the strength of his own title, and will not be permitted to rely on tbe weakness of his adversary.

Original proceeding. Application for a writ of certiorari by Charles F. Kapp against the District Court of the Seventh Judicial District of the State of Nevada, and others. The facts sufficiently appear in the opinion.

P. Langan, Judge. Action by the State, on the relation of Governor John Sparks and others, constituting the Board of Bank Commissioners of the State of Nevada, against The State Bank and Trust Company and others. From an adverse judgment, defendants appeal. The facts sufficiently appear in the opinion.

<p>Appeal from the District Court of the First Judicial District of the State of Nevada, Esmeralda County; J. P. O’Brien, Judge.</p> <p>Action by Frank Oliver against Theodore Little. From a judgment in favor of defendant, plaintiff appeals.</p> <p>The facts sufficiently appear in the opinion.</p>

P. O’Brien, Judge. Action by F. P. Hoffman against J. J. Owens, Sheriff of Nye -County, and another. From a judgment in favor of plaintiff, defendants appeal. The facts sufficiently appear in the opinion. I. Since there was no such change of possession as the statute contemplates, the conveyance was void and the property remained subject to attachment by the creditors of J. H. Hoffman. (Goardy. Gunn, 29 Pac. 918; Cooky.

Original proceeding. Application by the State, on the relation of J. G. Kaufman and others, for writ of mandate against C. T. Martin and others, Board of County Commissioners of Lyon County. The facts are sufficiently stated in the opinion. I. Respondents in the present case were vested with no discretion whatever in deciding upon the sufficiency of the petition presented to compel action on their part, but acted in a ministerial capacity.

Action by Sophia Anderson against C. Feutsch and another. From a judgment for plaintiff and an order denying a motion for new trial, defendants appeal. The facts sufficiently appear in the opinion. I. Section 271 of the Compiled Laws does not apply. The title of that act is An act to secure persons and animals from danger arising from mining and other excavations ” It has no relation to streets or excavations in streets. The words other excavations” are ejusdem generis.

P. Langan, Judge. Albert T. Jackman was convicted of murder, and appeals. The facts sufficiently appear in the opinion. See, also, 29 Nev. 403, and page 106 of this volume. I. The court erred in proceeding with the trial and overruling defendant’s objection to the jurisdiction of the court, because the judge of the court, Hon. Frank P. Langan, left the County of Esmeralda, and opened and held court in the County of Ormsby.

P. O'Brien, Judge. Action by Lillian May Finnegan against Bert Ulmer, William Mulholland, and others. From a judgment for plaintiff, defendant Mulholland appeals. The facts sufficiently appear in the opinion.

<p>Appeal from the District Court of the First Judicial District of the State of Nevada, Washoe County; W. H. A. Pike, Judge.</p> <p>Action by B. C. Weir against the Washoe Hardware and Supply Company, a corporation. From an order striking an amended complaint from the files of court, plaintiff appeals.</p> <p>The facts sufficiently appear in the opinion.</p>

Original proceeding. George Gibson applies for a writ of prohibition against Peter Somers, Judge, and another. The facts sufficiently appear in the opinion.